Gay soldiers appeal US military ban

Illustrated rainbow pride flag on a white background.

Twelve lesbian and gay veterans of the war on terror have filed a brief in the First Circuit Court of Appeals, in Massachusetts, challenging the constitutionality of the federal “Don’t Ask, Don’t Tell” ban on lesbian, gay and bisexual service personnel.

The case, Cook v Rumsfeld, was filed on behalf of the plaintiffs by Servicemembers Legal Defence Network (SLDN) and the law firm of Wilmer Cutler Pickering Hale and Dorr LLP.

The appeal challenges an April decision by the District Court which dismissed the lawsuit.

The Cook lawsuit, filed in December 2004, asserts that “Don’t Ask, Don’t Tell” punishes gay, lesbian and bisexual service members for their sexual orientation and for their private, constitutionally protected conduct.

As a result, the plaintiffs argue, it has denied and continues to deny them several Constitutional rights, including the right of privacy, equal protection of the law, and freedom of speech. The challenge to “Don’t Ask, Don’t Tell,” the plaintiffs’ brief asserts, is “grounded in the basic principles of identity, equality and freedom.”

“These twelve patriotic gay Americans continue their proud traditions of service to our country by fighting to topple ‘Don’t Ask, Don’t Tell,'” said C Dixon Osburn, executive director of SLDN.

“The military’s gay ban is not only unfair, but it also contradicts many of the freedoms envisioned in our nation’s constitution. We should honour lesbian and gay patriots who serve our country, not deny them the very freedom and dignity they fight to protect. We are optimistic that the First Circuit will grant these twelve men and women their much-deserved day in court.”

The plaintiffs in Cook v Rumsfeld all served more than sixty-five years in the armed forces. Three have served in direct support of operations in the Middle East. Collectively, they have earned more than five dozen awards, medals and commendations. Among the plaintiffs in the lawsuit are:

Former Navy Lieutenant Jenny Kopfstein, a graduate of the US Naval Academy, patrolled the nation’s borders in the wake of the terrorist attacks of September 11, 2001. LTJG Kopfstein’s command declined to discharge her for two years after learning she is a lesbian.

Former Army Sergeant First Class Stacy Vasquez. served nearly ten years as an Army paralegal and was one of the top recruiters in the Army. Vasquez was discharged after being outed by a fellow service member’s wife.

Former Air Force Sergeant David Hall served for five years as an enlisted member of the US Air Force before joining the Air Force ROTC program at the University of Alaska, was ranked first in his ROTC class. After serving in Saudi Arabia and Kuwait, Hall was fired when a fellow cadet and friend outed him to his command.

The brief filed states, in part, that “Nearly thirteen years of experience under (‘Don’t Ask, Don’t Tell’)-following twelve years of experience under the prior gay-exclusion regulation- confirm that gay service members have not hurt military operations, impaired discipline, or posed a risk to unit cohesion. Yet in response to this non-existent threat, ‘Don’t Ask, Don’t Tell’ has shattered careers, deprived the United States of the service of dedicated and skilled professionals, and demeaned all service members’ capacity for tolerance and professionalism.”

The brief goes on to say that, “‘Don’t Ask, Don’t Tell’ . . . embodies a startling disconnect: At a time when the military is experiencing well-documented recruiting difficulties, and has been reduced to bending the rules to fill its ranks, . . . the Armed Forces continue to discharge distinguished service members in substantial numbers simply because they are gay. . . . These discharges occur even as the majority of Americans recognise that there is nothing inconsistent between being gay and serving honourably.”

The plaintiffs’ brief asserts that the April District Court decision inappropriately denied the twelve veterans their day in court and wrongly interpreted the Supreme Court’s decision in Lawrence v Texas, which struck down state sodomy laws.

“Every qualified American who wishes to serve our country should be allowed to do so, regardless of sexual orientation,” Mr Osburn said. “We are confident in the strength of our case, and believe the days of ‘Don’t Ask, Don’t Tell’ are numbered.”